Wong Ming-yim (F) v. The Queen

CACC000020/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 20 OF 1981

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Coram: Hon. Fuad, J.

Date of Judgment: 23rd January, 1981

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JUDGMENT

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1. The appellant, who is a 15 year old school girl, pleaded guilty to shop-lifting. She was fined $250 and appeals to this Court. On the 23rd January 1981 I allowed her appeal, set aside the fine and substituted an absolute discharge. I directed that no conviction should be recorded in respect of this offence. I now give my reasons.

2. The facts were as follows. On the 18th December last year, the appellant stole articles valued at $122 from the Watson's Super Store in Nathan Road. She was caught just outside the shop and the property recovered. She had a clear record.

3. The learned magistrate gave the following reasons for deciding to record a conviction and impose the fine:

"Appellant did not in any sense appear to be a neglected child, and her parents appeared to be responsible persons. I did not think it necessary to call for a probation report, and considered that a fine of approximately double the value of the goods stolen would be appropriate. It has been my experience that a conditional discharge under section 36 of the Magistrate's Ordinance does not act as a deterrent in shop-lifting cases, and in deciding to record a conviction, I followed my usual practice for this type of offence, which is extremely prevalent among students. I noted that appellant was no longer a child but a young person, was of good intelligence and well aware of what she was doing, and that intelligence and well aware of what she was doing, and that this was a deliberate course of action rather than momentary temptation, since she stold not one but a number of articles from different counters. I also noted that the total value of the articles stolen was over $100. There being no extenuating circumstances, I considered that a record should be kept, and so ordered."

4. It will be seen that the learned magistrate took everything into account and dealt with the case with anxious care.

5. The appellant told this Court that Christmas was approaching and her friends had given her presents. She wanted to be able to give them presents. She bitterly regretted what she had done and begged the Court not to record a conviction because this might affect her future, particularly if she had an opportunity to study abroad in the years to come. She spoke up for herself very well, with a quiet dignity beyond her years. She convinced me that she was genuinely contrite.

6. I perfectly understand why the learned magistrate (who has to deal with this type of case daily) decided that the need to deter others was an important factor, but I felt that this Court was able to take a merciful view. I had no doubt that the girl had learned her lesson and would never trouble the courts again. It was for these reasons that for the orders made by the learned magistrate, I substituted an absolute discharge and directed that a conviction be not recorded.

Representation:

Appellant in person

Mr. T.M. Gall, Senior Crown Counsel, for respondent